Town of Cavendish v. Town of Troy

41 Vt. 99 | Vt. | 1868

The opinion of the court was delivered by

Peck, J.

The issue in this case was whether the paupers, at the date of the order of removal, had a legal settlement in Troy. ’This depended on. the question whether Erastus Thomas gained a settlement in Troy, by seven years’ continuous residence, between 1824 when he removed with his family from "Weathersfield to Troy, and the time of his removal back to Weathersfield in 1834. If the testimony on the part of the plaintiffs was true, Erastus .Thomas resided in Troy continuously from 1824 to 1834. The defendants’ evidence tended to show that he removed from Troy .to Jay in the spring of 1829, and resided there till the fall of the same year, when he removed back to Troy. If this was so, it was such an interruption of his residence in Troy as to prevent him from gaining a settlement there. This was the only dispute. The plaintiffs introduced evidence tending to show that said Eras-tus, instead of moving to Jay in the spring of 1829, moved from the place where he had resided in Troy, to a house called the Novey house, in the east part of Troy, and resided there all the time that the defendants’ evidence tended to show that he resided in the Bela Keith house in Jay. This Bela Keith house was about seven miles from the Hovey house. There was direct evidence on the part of the plaintiffs, that Erastus lived in the Hovey house that season. In addition to this, the plaintiffs introduced an account-book of Samuel H. Hovey, on which were an account with Erastus Thomas, debt and credit, running along through the spring, summer and fall of 1829, and an account .against two other persons, which, the plaintiffs claimed, tended to confirm the other testimony tending to show that said Erastus did not live in Jay that season, but that he lived near Samuel H. 'Hovey’s, in the Hovey house. The case shows that no objection was made to the introduction of these accounts, and that no •question was made but that the accounts were true and genuine, and made at the time of the transactions and dates. The defendants’ counsel requested the court to charge the jury that this •evidence, the book, had no tendency to prove that Erastus lived in the Hovey house during the season of 1829, and that it was not proper to be considered for thatjourpose. The court declined so to instruct the jury, but told them that they were at liberty to consider that evidence, as -bearing on the place of said Erastus’s ■residence in 1829, in connection with the other evidence' on the part of the plaintiffs, referring the jury to the evidence that Erastus was poor, and supported himself by working out by the-day, and depended on his daily earnings for the support of himself and family; and that it was seven miles from Bela Keith’s house in Jay to the Hovey house, and very bad and difficult to-travel; that Hovey was a large farmer, doing various business, etc. We think this account, considering the character of the-items and the dates when they accrued from time to time during-that season, is a circumstance proper to be considered as confirm.7atory of the other evidence on the part of the plaintiffs. It is just such an account as would be likely to accrue between the parties to it, considering their business and condition, if they lived near each other, and such as would not be likely to accrue, or, at least, much less likely to accrue, while living seven miles from each other. The account consists of small items of neighborhood deal, mostly provisions consisting of farm products for-family supplies, furnished by Hovey, and, on the other side, labor by the day. May 19, 1829, Hovey has a charge: “Myself, horses and wagon, to help him move, $0.75.” The charge is silent as to the place to which he moved him; but two days after is a charge for one bushel of potatoes, and two-days after that is an item of five pounds of butter. This has some tendency to make it look more probable, that he moved him into the neighborhood of Hovey, than that Erastus would come seven, miles from Jay twice within four days after he moved, for these articles so small in amount and value. The same is true of the-subsequent items, especially in connection with the testimony of Madison Keith, who testifies, among other things, that he has lived in Jay since 1813, and lived till 1837 within 40 or 50 rods from his brother Bela’s (where the defendants claim Erastus lived), and that'said Erastus never lived in Ms brother Bela’s house; that the witness carried on a farm of 300 to 400 acres, and was in the habit of hiring help, and generally paid day laborers in produce; and that he knew Erastus Thomas, but never had any deal with him, and that Erastus never- worked for Mm-. This certainly would tend to show it more probable, that Erastus would not have gone seven miles every few days to procure his; family provisions; since, if be lived in the Bela Keitb house, he might probably have obtained employment and supplied Ms family nearer home. There is an entry on this account between Hovey - and Erastus Thomas, purporting to be signed by both, to the effect that the account was settled and paid. It appeared that both parties to the account were dead. The counsel on the part of the defense insist that this account was inadmissible as evidence, and we are referred to authorities from which it is urged that this case does not come within the principle of the cases in which entries of this character have been received as evidence. The particular-objection urged is that there is no evidence in this case, except-the account itself, to prove the dealings charged. It is true that, in some of the cases referi’ed to, there was such other evidenced But it is to be noticed that the great question involved in tin-cases on this subject, and on which the objection was founded, has been whether the entries were evidence that the transactions took place which the entries purport to show, and when. But - in the case at bar this is obviated by the fact that the case shows that the entries were received in evidence without objection, and that no question was made but that the dealings took place as the.accounts indicate, and at the dates therein specified. This leaves-no question which could have been made to the court or jury, except the question whether the entries have any tendency to-prove the disputed fact, treating the accounts as truly represent- - ing actual transactions between the parties to them, and the dates-therein mentioned as correct. As the evidence has such tendency,., the court properly allowed the jury to consider it. But it is-objected that the accounts on the book between Hovey and Wing, and between Hovey and Pearson, were inadmissible, and that-the inferences which it is said in argument the plaintiffs’ coun- • sel sought to draw from them before the jury, in connection with. the Erastus Thomas account, were too remote for legal evidence. No specific objection was made at the time to this portion of the book, nor to such use of the evidence before the jury. The request to the court was to instruct the jury to lay this evidence, as a whole, out of the case, and, as some of it was evi- ■ deuce, the denial of that request and telling the jury they might-Consider it, were not error. It is too late now to raise objections to particular portions or items of it, to which the attention of the court was not called at the trial.. This would be so, even if the case showed nothing further on this point. But this view is made clearer from the statement in the exceptions, in which it is said: “ As to the above named accounts, writs and records, the exception was to the court’s refusal to instruct the jury that they had no tendency to prove the issue on the part of the plaintiffs, and permitting them to be considered by the jury, as set forth above. The court gave full instructions to the jury as to the consideration to be given to them, in connection with the other evidence in the case, to which instructions no exception was taken.” These .particular instructions must be presumed to have been correct; but whether so or not, having been such as the defendants , were satisfied with at the time, no exception can now be taken to them, more especially to a charge not before us, provided the book could be considered at all. The original writs in favor of Eras-tus Thomas, one against Higgins, one against Messer, and one against Rogers, in which the plaintiff was described as of Troy, and the defendants as of Kellyvale, together with the record of judgments against the defendants therein, had some tendency to prove that the plaintiff in these .suits resided in Troy, the suits having been commenced and the judgments rendered during the time of this disputed residence. Thomas was the actor in these suits. He must have known where he resided. If he resided in Troy, the. proceedings are regular, and the writs returnable as the law required, in the town where one of the parties resided. Judicial proceedings' regular on the face of them, must be presumed to be regular, until the contrary appears. At least, the presumption is stronger in favor of their regularity, than that they were irregular. It is a business transaction, an act done some forty years ago, and it is beyond the limits of probability or speculation, that it could have been irregularly done with a view to be used as evidence. It differs from the declarations of the pauper in Derby v. Salem, 30 Vt., 722, as to where he had resided at a former period, made after the time in question; although the court in that case express a doubt whether such declarations, if made at the time in question, would be admissible, except to show the character of his stay or residence in the town. In that case the court admitted a book of accounts of a deceased inhabitant, of Derby, on which was an account against the pauper, for the pur-. .pose of showing the time when the pauper moved into Derby. One item of the account was for moving the pauper from Salem to Derby, It is insisted that such entries are admissible only to prove the date, where the transaction is proved by other evidence. But in that case there was no evidence to prove the transaction, the performance of the service charged, nor any item in the account, except the book itself. Proof of the date in that case, in order to give it any force as evidence, necessarily involved proof of the rendering of the service charged; otherwise there would have been nothing to which the date could apply. These writs arc admissible upon the same ground that, to prove the residence of a person in a town, documents and records of the town would be received, showing that the person voted there for town .representative, and was elected to offices in the town which no one but an inhabitant of the town could legally hold. The refusal of the request, therefore, to charge the jury to lay this evidence out of the .case, was not error. I think, also, upon another ground the court were right in denying this request, even if the court would have been justified in excluding it on objection, when offered. It certainly had a moral tendency in favor of the plaintiffs, in reference to the fact in dispute, and was admitted without objection. I think, where evidence has such moral tendency to induce belief of the truth of the disputed fact, although the inference from it is too remote to constitute legal evidence, the right to object to it is waived by suffering it to come in without objection, as the party offering it may have relied on it, and thereby been induced .to omit to supply it by other,proof. At least, the court at the trial would have a right to treat it as such waiver.

The question put by the plaintiffs to the witness Craig, was correctly allowed. The question was this : “ From your opportunities of knowing, as you have now stated them, do you think it possible for Thomas to have lived in Jay that year and you not .'have known it ?” to which the witness answered: “I should not think it was.” The case states that no objection was made to the-form of the question. The witness had stated that he was well, acquainted with Thomas before and after he (Thomas) moved to . Troy; that he (the witness) lived within one and a half mile from the Hovey house at the time in question in 1829; that Thomas lived in the Hovey house that season with Barker and father; that he (the witness) was frequently at that house that season; that Thomas worked for him considerably that season; and various other facts-showing that he knew that Thomas lived in the Hovey house, and that he did not live in the Bela Keith house that season. The oN jection urged is that the question called for the opinion of the witness, and that the inquiry falls within the principle that a-witness must state only facts, and not opinion. The general rule is that a witness must state facts, and not opinion; but it is not a universal rule, nor are the exceptions to the rulé confined to experts on matters of science, art or skill. Where the witness has had the means of personal observation, and the facts and circumstances which lead the mind of the witness to a conclusion, are incapable of being detailed and described so as to enable anyone but the observer himself to form an intelligent conclusion from them, the witness is often allowed to add his opinion, or the-conclusion of his own mind. Such is the case in questions of identity of persons and things, handwriting, the value of property, questions of insanity, time and distance, etc., and various other-instances that might be referred to. In Clifford v. Richardson, 18 Vt., 620, Royce, J., speaking of the rule that excludes opinions of witnesses, says: “ This rule, however, has its exceptions, some-of which are as familiar and as well settled as the rule itself. Where all the pertinent facts can be sufficiently detailed and described, and where the triers are supposed to be able to form correct conclusions without the aid of opinion or judgment from others, no exception to the rule is allowed. But cases occur where-the affirmative of these propositions can not be assumed. The facts are sometimes incapable of being presented with all their • proper force and significancy to any but the observer himself, as in cases of insanity, to which may be added that of a settled, affection or dislike toward a particular person. Under these cirr •cumstances, tbe opinions of witnesses must of necessity be received.” It would be so difficult for tbe witness to detail and describe all tbe facts and circumstances, in their full force, which ,.go to make up his knowledge of the fact that Thomas lived in the Hovey house and not in the Bela Keith house that season, as to bring this question and answer within the exception, and not ■within the rule that excludes opinions of witnesses, if it can be regarded as an opinion, in the legal sense of the rule. It is rather •a mode of expressing the degree of confidence the witness has in the fact he had affirmed as to the place of the residence of Thomas •during the time in question. It is like the case where two witnesses are present at a conversation with a third person, and one witness testified that a particular thing was said, and the other is called and testifies that he was present all the time and heard no such thing said. In such case, it is always allowable for the latter witness to state whether, if any such thing had been said, he thinks he should have heard it. The question put to Mrs. Hunt in her deposition, is of the same character. She had testified to living in the immediate neighborhood of Bela Keith in Jay in the spring-rand summer of 1829, where the defendants claimed Thomas then lived, and, in effect, that Thomas did not live there. She was then asked if she thought it was possible, that Thomas and his family could have lived there that summer and she not know it. Her : answer was: “ I think not, as I was there frequently. It does n’t .seem to me that there was any place in the house where they could have lived comfortably.” We think the question and '.the answer were proper and pertinent.

Judgment affirmed.